Appeal uphold the judgement against the dog owner for damages, but recalculates damages upward.

Murray J

1 The appellant is a self-employed commission agent. His principal client at all material times was Westral Home Improvements for whom he sold window blinds. His work required him to go into private homes to give quotes, obtain orders and take measurements. On 18 March 1999 he entered the respondent's home for these purposes and while he was working there, he was bitten by her dog.

2 He sued for damages for personal injuries in the District Court. The claim was made under the Dog Act 1976 (WA), s 46(2) which makes the owner of a dog liable in damages inter alia for any personal injury caused in the course of an attack by the dog. It is not necessary to prove negligence on the part of the owner: s 46(3), but under s 46(2) the award of damages is subject to any contributory negligence. The appellant pleaded that he suffered a puncture wound to the back of his right hand, pain, anxiety and stress as a result of which he pleaded that he had lost earnings, incurred medical expenses and would be likely to incur such expenses in future. He pleaded that he had suffered significant restrictions, not only in his work, but in social and household activities. Specifically as to the psychological trauma allegedly suffered, he gave the particular that he "suffers from anxiety, stress and a significant fear of dogs."

3 The respondent denied liability, pleading what she contended were the factual circumstances in which the appellant came into her house and alleging that he was a trespasser. Contributory negligence was pleaded and damages were in issue.

4 There was a short trial in the District Court on 29 and 30 October 2001 before Wisbey DCJ. His Honour found for the appellant on the issue of liability. He accepted the evidence of the appellant which he found to be cogent and convincing. On the other hand, his Honour thought the evidence of the respondent had "an air of improbability about it." On the account of the facts accepted by his Honour no question of contributory negligence arose.

5 His Honour assessed the damages in the sum of $1954.23 made up as follows:

General damages $ 750

Loss of earnings $ 650

Interest on loss of earnings $ 47.33

Special damages $ 472.50

Interest on special damages $ 34.40

Total $1954.23

6 Judgment was entered for the appellant in that sum. Because on the basis of his Honour's assessment, the action could have been brought in the Local Court, the appellant was awarded costs to be taxed on the appropriate Local Court scale up until 27 September 2001, presumably the date of an offer to consent to judgment by the respondent. Thereafter the respondent had the costs of the action to be taxed on the appropriate Local Court scale.

7 I may mention now that there is a cross-appeal by the respondent against that award of costs. The point is a short one. It is that the respondent found herself defending the action in the District Court because that was where it was brought, the appellant contending that a proper award of damages would well and truly exceed the sum of $25,000, the limit of the Local Court jurisdiction. Having succeeded to the degree she did in the District Court and having obtained an order for costs there, her contention is that the order should have been that she have the costs after 27 September 2001 taxed on the scale appropriate to an action in the District Court.

8 For my part, I think the point cannot be made good. It seems to me that in the circumstances, by awarding the respondent the costs to be taxed on the Local Court scale, the exercise of discretion by his Honour did not miscarry. His Honour gave no reasons for the order he made. However, I note that under the District Court of Western Australia Act 1969 (WA), s 74(2) the prima facie rule is that a plaintiff who brings in the District Court an action which could have been brought in a Local Court is limited to the costs which could have been recovered on taxation in the Local Court. As the respondent was therefore not exposed to a greater award of costs against her than if the action had been tried in a Local Court, it would not seem to me to be a necessarily inappropriate exercise of discretion to award her costs to be taxed on the appropriate Local Court scale. I note that she could have applied to have the action remitted to a Local Court for trial under the District Court Act, s 74(1). I would dismiss the cross-appeal.

9 The appeal challenges the award of damages as being outside the proper discretionary range. Particular criticisms concern the assessment of general damages of a non-pecuniary kind, the award for past economic loss, the failure to make any award for future loss of earning capacity and the failure to make any award for future treatment, in particular psychological counselling. It is said that Wisbey J failed to place adequate weight on the evidence of two psychologists called by the appellant.

10 The first such witness was a clinical psychologist, a Ms Clarkson. Following the attack by the respondent's dog on 18 March 1999 she saw the appellant on 3 June and 10 June 1999. He presented with symptoms of anxiety and fear of a further dog attack. Ms Clarkson treated the problem by providing techniques to overcome his fear. The improvement was so considerable on the second appointment that Ms Clarkson anticipated that the appellant would be capable of overcoming the problem of anxiety if he applied the skills which she had taught him. Indeed, he did not return for nine months.

11 She saw him again on 16 March 2000 as a result of an encounter with an aggressive German shepherd dog which had caused a recurrence of anxiety symptoms. She repeated the treatment and again she did not see him after that until the appellant consulted her six months later on 6 September 2000. The appellant complained "that his difficulty attending homes with aggressive dogs had recurred." He reported that he had encountered "vicious dogs" in recent weeks and his fear and anxiety had returned. Again, this was a deterioration in his condition which resulted from the encounter with dogs just before the consultation. On this occasion, Ms Clarkson appears to have been less optimistic about the appellant's prospects of continuing with his work without a further recurrence of symptoms, but it is to be noted that the evidence of Ms Clarkson does attribute the recurrence of symptoms in 2000 to the attack in March 1999, triggered however by the later incidents.

12 The other clinical psychologist called was a Ms Kostic. She had been consulted for an opinion in May 2001 leading up to the trial. She diagnosed continuing post-traumatic stress disorder. There was some debate at trial and before us as to whether a psychologist, as opposed to a psychiatrist, has the expertise to make such a diagnosis. Of course a psychologist is not medically qualified, but if the diagnosis is received as a description of the fact that some traumatic event has caused an excessive degree of stress and anxiety in the patient, then I see no difficulty with it and I think it was in those terms that Wisbey J received the opinion.

There is no doubt that Ms Kostic attributed the ongoing stress and anxiety to the attack which occurred on 18 March 1999. She recommended continuing treatment and she expected that the appellant would continue to suffer recurring psychological and physiological symptoms triggered by each home visit where the occupant owns a dog.

13 There was no reason to refuse to accept that opinion and Wisbey J did not do so, but he summed up the effect of this evidence in terms that:

"... the psychologists seemed to be saying no more than that because he was attacked by a dog, the plaintiff has a continuing fear of dogs; exercises more than the usual degree of caution when in their presence; and has a heightened fear of them. I am prepared to accept that the plaintiff is so positioned, a situation which he undoubtedly shares with numerous others in the community."

Later his Honour said of the accident that, "There have been some mild residual psychological consequences, but in my view they are not disabling, nor presently of consequence."

14 As to the award of $750 for the non-pecuniary aspects of general damages - the physical injury, loss of amenities, pain and suffering; the most substantial element was clearly the psychological harm suffered by the appellant, which was found to have been caused by the attack by the respondent's dog. It is true that, as Wisbey J found, the actual injury to the appellant's right hand was "relatively insignificant", an injury from which he made "a quick and satisfactory recovery". The initial shock was obviously quite distressing and the medical treatment first obtained was unsuccessful, necessitating a return visit to the doctor to have the wound sutured. Although antibiotics were originally prescribed, the wound shortly afterwards became infected and had to be cut open and drained. A further course of antibiotics was prescribed and, as the trial Judge found, thereafter his recovery from the purely physical consequences of the attack was uneventful.

15 As to the psychological impact of the attack, the stress and anxiety suffered by the appellant, in the course of his reasons Wisbey J made the comment, "I found the [appellant's] evidence as to the effect that the attack had upon him, and in particular on his earning capacity, imprecise and unconvincing." Just prior to that remark his Honour was discussing the appellant's evidence about the effect his anxiety symptoms had upon his earning capacity. His Honour resumed that discussion after the remark quoted above. I shall return to this aspect but, reading the judgment as a whole, it seems to me to be clear that his Honour did not conclude that he did not accept the evidence of the appellant and his wife about the stress and anxiety suffered after the attack. Indeed, his Honour expressed the contrary view, but described the degree of stress and anxiety by using the phrase "mild residual psychological consequences".

16 The evidence gives a little more substance to the psychological disability. By evidence in this context I do not, of course, mean the histories taken by Ms Clarkson and Ms Kostic. But the evidence of the appellant and his wife was that he suffered physical symptoms of stress and anxiety and was nervous and apprehensive in his work activities when confronted by a strange dog, whether the dog behaved aggressively or not. The appellant owned a dog himself, but he was so afraid of encountering a strange animal that he could no longer walk his dog and he found it difficult and was unwilling to visit friends who had large dogs.

17 Initially, he found it embarrassing that he felt compelled to ask potential customers if they had dogs and, if they did, to ask them to be sure that the dog was secured before he came. Whilst the trial Judge did not accept that the appellant's fear in his work situation made it difficult to concentrate on what he was doing and had affected the performance of his work, the other problems to which the evidence referred seem to have been real enough and, although psychological treatment and counselling may clearly effect an improvement, it seems to be clear that the appellant is liable to a recurrence of symptoms if there should be any further distressing incident involving a dog.

18 Neither psychologist, however, expressed the view that a proper course of psychological treatment was unlikely to be of assistance for the future. And so it seems to me, as I think was considered by Wisbey J to be the case, that the appellant has suffered some rather distressing, but relatively mild, residual psychological consequences of the attack. They have been rather less susceptible to treatment than Ms Clarkson appears originally to have thought. While the consequences have undoubtedly been mild, in my respectful opinion an award of $750 is manifestly inadequate. In my view, an appropriate award, having regard particularly to the nature of the psychological harm and its susceptibility to treatment, would be the sum of $5000.

19 As to the question of treatment, a claim was made for the likely cost. The response of Wisbey J was, "I do not make any allowance for further psychological intervention, since I do not consider it is necessary." However, despite the fact that the appellant had sought treatment from Ms Clarkson from time to time the symptoms kept recurring and the evidence was that at the time of the trial he continued to suffer these disabilities, such as they were.

20 Ms Kostic recommended a treatment programme comprised of "a graduated exposure programme as well as a revision of the arousal reduction techniques presented by his previous psychologist". She suggested 10 to 12 60-minute sessions at a cost of $158 per hour as recommended by the Australian Psychological Society. In my view, an appropriate award for such a programme would be the sum of $1500, making a minor reduction for the acceleration of payment involved in the award of damages. I would make no allowance for interest in this regard.

21 There were agreed special damages of $692.50 from which the trial Judge, in my respectful opinion properly, deducted Ms Kostic's account in the sum of $220 on the ground that the appointment for her assessment and report was effectively a qualifying fee for her as an expert witness. His Honour therefore made an award under this head of $472.50 upon which sum he allowed interest at 3 per cent to the date of judgment, the sum of $34.40.

22 That leaves the challenge to the sum of $650 allowed for past loss of earnings and the complaint that Wisbey J improperly failed to make any allowance for future loss of earning capacity. I have mentioned that his Honour found the appellant's evidence about the impact the attack had on his earning capacity to be "imprecise and unconvincing." Having reviewed the evidence his Honour concluded:

"In the result it is not possible to make any arithmetical calculation of economic loss. I am prepared to accept that there would have been a small reduction in the [appellant's] earning capacity for a few days, and that thereafter he might have been a little less enthusiastic than previously. Doing the best I can I would allow $650 for past loss. I am not satisfied that there is any ongoing adverse effect on earning capacity."

23 As to loss of future earning capacity, I respectfully agree with Wisbey J. It was open to his Honour to conclude that the evidence was unconvincing about this aspect of the claim. The appellant gave evidence that his earnings had fallen from a position at the top of his peer group to about the middle, but I can find no hard evidence to give substance to that assertion, which is of a subjective perception by the appellant.

24 As to past loss, the appellant tendered in evidence a book of economic documents comprising various tax returns. Another useful exhibit to which his Honour referred was exhibit P2, a bundle of three taxation payment summaries for the 1998, 1999 and 2000 financial years. They show gross income month by month. There are substantial variations, to which in each case income tax at a provisional rate of 20 per cent is applied. The accident occurred on 18 March 1999. The appellant's gross income for that month was a relatively high figure of $7952.80. March appears historically to be a substantial earning month. For April of 1999 the appellant's gross earnings dropped to $4022.76. There appears always to be a drop in April but in that case the appellant's earnings were halved. Between March and April of the previous year there was a drop of $1000 and between March and April of the following year a drop of about $2500. The evidence ascribed to the larger proportionate decrease in earnings in April 1999 no other cause than the impact upon his earnings caused by the dog attack of which the appellant spoke in evidence.

25 In May 1999 the documents show his gross earnings were back to $5192.78, an increase of just over $1000 from the April figure. In May the previous year, he grossed $5541.72 and in May the following year his earnings jumped from about $5600 to $7700. Again in June 1999 the appellant earned $5403.74 gross. That was very close to his earnings for the previous June although in the following year his earnings jumped again from about $7700 in May 2000 to just over $9800 in June of that year.

26 Clearly his Honour was right when he observed that the figures suggested merely that there was a reduction in commission earnings for a short period of time after the incident and, in my opinion, a global assessment of the loss was appropriate but to my mind the evidence supported a much greater allowance under this head than the sum of $650. Bearing in mind that one is talking about net loss, it seems to me that an award of $1500 would have been appropriate upon all the evidence rather than the calculation of which the appellant gave evidence in which he quantified his past loss in the sum of $4691.20. To the figure I have suggested should be applied the interest calculation at the rate of 3 per cent over the period of about 2&frac12; years from the time when the loss was incurred until the date of judgment which produces a figure of about $113.

27 For the reasons I have given, I would therefore allow this appeal and dismiss the cross-appeal. In lieu of the judgment for the plaintiff in the sum of $1954.23. I would make an award of damages of $8620 made up as follows:

Non-pecuniary general damages $5000

Past loss of earnings (including interest) $1613

Special damages (including interest) $ 507

Future psychological treatment $1500

Total $8620

Wheeler J

The appeal

28 I am generally in agreement with the reasons for decision of Murray J, in relation to the appellant's appeal, and with the orders which his Honour proposes in relation to the appeal. However, so far as the figure for past loss of earnings is concerned, it appears to me that his Honour the trial Judge's reservations about the appellant's evidence on this point were well founded. Murray J has analysed the economic documents tendered by the appellant, and has demonstrated the difficulty of deriving any particular figure for past loss of earnings from those documents. In those circumstances, it appears to me that the difficulty of calculation on this point is such that very little more than a nominal figure would be appropriate. I would see no reason to depart from the trial Judge's assessment of the sum of $650 net in relation to past loss of earnings, with interest on that sum of $47.33. The award which I would have made in lieu of the judgment appealed from would be made up therefore as follows:

Non-pecuniary general damages $5000

Past loss of earnings (including interest, rounded up) $ 698

Special damages (including interest) $ 507

Future psychological treatment $1500

Total $7705

The cross-appeal

29 So far as the cross-appeal is concerned, I would find in favour of the respondent. In my view, as a general rule, a defendant in the position of the respondent should be entitled to costs on the District Court scale, in the absence of special circumstances. I see no relevant special circumstances here.

30 The jurisdictional limit of the Local Court at the relevant time was $25,000. In the appellant's answer to the respondent's request for further and better particulars of the statement of claim, the appellant claimed a total of $222 approximately in out-of-pocket expenses, $2000 for future medical expenses, in excess of $4500 for past loss of earnings, and for future loss of earnings, "a global sum of not less than $30,000". Even without any general damages, then, the claim appeared to be well in excess of $25,000. Section 74 of the District Court Act relevantly provides:

"74(1) Where an action is brought in the court that might have been brought in a local court without the consent of the defendant -

(a) the defendant may, at any time, apply to the court ... for an order remitting the action to the appropriate local court.

...

(2) ... When an action is brought in the court that might have been brought in a local court without the consent of the defendant, the plaintiff is not entitled to recover a greater sum by way of costs than he could have recovered had the action been brought in the local court, unless the District Court Judge hearing the action certifies -

(a) in the case of an action founded in tort, that in his opinion it was proper to bring the action in the Court instead of the local court

..."

31 The position appears to me to be as follows. At the time at which the action was brought, the respondent might have applied for an order remitting the action to the appropriate Local Court. Such an application would have been doomed to failure, since there was nothing on the face of the statement of claim suggesting that the matter was one which could have been brought in the Local Court, and since the particulars demonstrate that the claim, as brought by the appellant, exceeded the jurisdiction of the Local Court. So far as the appellant is concerned, had there been no offer of compromise and had the appellant therefore been entitled to his costs, the question then would have arisen, pursuant to s 74(2)(a), whether when instituting the proceedings he might reasonably have been expected to recover an amount in excess of the maximum of the jurisdiction of the Local Court: Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; SCt of WA (Kennedy J); Library No 980302; 28 March 1998. Having regard to the evidence, and to the amount actually awarded, the Judge hearing the action may have reached the view that it was not proper to bring the action in the District Court.

32 However, so far as the respondent was concerned, the respondent had no choice as to where the action was brought, nor as to whether the action continued there. At least in the early stages of the action, the basis upon which the appellant claimed the significant sums referred to in the particulars was a matter largely within the appellant's knowledge. As the proceedings continued, and discovery was given, and the case was got up for trial, the respondent might have been expected to realise that the appellant was unlikely to recover as much as at first appeared.

33 It is, I think, both common sense, and a principle which underlies the different scales of costs for different courts, that (leaving aside questions such as potential damage to reputation, or other possible consequences of litigation) a prudent and reasonable person will spend a greater amount on litigation where he or she stands to lose a greater amount financially. It would not generally be necessary to engage a senior and experienced practitioner, or to do much in the way of investigation and research, for a Local Court claim involving a few thousand dollars. Even where the factual and legal complexity was not significantly increased, however, a significant increase in the quantum in issue might well justify a greater expenditure. It is my view that it should generally be assumed therefore, that a prudent and reasonable defendant, faced with a claim brought in the District Court and which on its face is well in excess of the jurisdiction of the Local Court, will be entitled to recover costs in accordance with the District Court scale.

34 In the particular circumstances of this case, it is fair to observe that the factual issues were not complex and that on any view the amount awarded was likely to be towards the bottom rather than the top of the District Court's monetary jurisdiction. It may well be therefore that on taxation it would only be appropriate to award the respondent costs very significantly below the maximum sum to which a litigant in the District Court may be entitled. However, I would see that as generally being an issue for a taxing officer, rather than something which should influence the trial Judge's discretion as to the appropriate scale. I would therefore allow the cross-appeal.